Opinion
04 Civ. 10175 (NRB).
July 12, 2005
Mark Kollar, Shawangunk Correctional Facility, Wallkill, NY, Petitioner Pro Se.
Alan Gadlin, Esq., Office of the District Attorney, New York County, New York, NY, Counsel for Respondent.
MEMORANDUM AND ORDER
Mark Kollar ("petitioner" or "Kollar"), an inmate in New York state prison serving a sentence of 25 years to life, has brought this petition for habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction after a trial by jury. Petitioner bases his petition on two grounds: (1) failure of the trial court to instruct the jury to assess the voluntariness of his statements to police; and (2) ineffective assistance of counsel. For the reasons set forth below, the petition is denied.
BACKGROUND
The Arrest
On May 21, 1996, 44-year-old Phyllis Starr was found dead in her apartment on the 14th floor of the Times Square Hotel. Starr's body was discovered by her social worker Elizabeth Koch after Starr missed some scheduled appointments. On May 17, 1996, Koch stopped by Starr's apartment, knocked on her door, and after receiving no reply, left a note under Starr's door. On May 21, 1996, having still not heard from Starr, Koch returned to Starr's apartment with her supervisor and unlocked the locked door with a key. Upon entry into Starr's apartment, they found Starr lying in a pool of blood on the floor, and immediately called the police. The police arrived shortly thereafter, and began investigating the crime scene.
The victim's apartment was small and quite hot, approximately ninety degrees. The victim was found wearing only a shirt, and there were bloodstains in various parts of the apartment. The police found no indication of a break in, nor any signs of a struggle. A number of bloody footprints were visible in various parts of the apartment, and for the most part, these footprints were of a right foot covered with a sock. Eleven pieces of floor tile were removed so that these prints could be examined in more detail. On May 31, 1996 investigators extracted six more pieces of floor tile from Starr's apartment for analysis. All of these tiles were eventually forwarded to the FBI for analysis. In addition to the footprint evidence, the police discovered small amounts of blood on the outside of the apartment door directly across from Starr's apartment.
Around 3:00 p.m. that day, petitioner entered the Times Square Hotel where he lived on the 14th floor directly across from Starr's apartment. Noting the large police presence, petitioner asked a detective what had happened. When petitioner was informed that Starr had been found dead, petitioner indicated that he was Starr's neighbor and that he knew her. After agreeing to aid police in gathering more information about Starr, petitioner was escorted to the police station. Petitioner arrived at the station around 4:00 to 4:30 p.m, and was asked to wait for the return of Detective Gardiner from the crime scene. Petitioner complied with this request, and waited at the station for questioning for approximately twelve hours. At no time during this period did petitioner request to leave the police station.
Because petitioner lived in the apartment with blood on the door, the police requested authorization from petitioner to enter his apartment and remove any evidence that would aid in the investigation of Starr's death. At approximately 11 p.m. on May 22, 1996, petitioner signed a handwritten note granting the detectives access to his apartment. Thereafter, several objects were removed from petitioner's apartment, although none would prove to bear identifiable traces of Starr's blood. However, through serological testing, the blood found on the outside of petitioner's apartment door was identified as Starr's.
At some point after 3:00 a.m. on May 22, Detective Gardiner arrived at the police station, and at about 4:00 a.m. he began interviewing petitioner. While no Miranda warnings were administered to petitioner at this time, petitioner was informed multiple times that he was not under arrest, and that he could he could leave at any time. Petitioner never indicated any desire to leave the police station during or prior to the interview. After completion of the interview, petitioner returned home.
Over the course of the three hour interview, petitioner informed Gardiner that he and Starr were friends, and that on numerous occasions petitioner had been in Starr's apartment. Petitioner informed the detective that he had last seen Starr during the day on either May 9 or 10, 1996. According to petitioner, he and Starr were supposed to meet for dinner that night, but Starr missed the appointment. Consequently, petitioner left a note under Starr's door on May 13 inquiring as to why she had missed their dinner. Petitioner also informed Detective Gardiner that he had learned from Starr that she was due to receive a social security check worth $20,000. During the interview, Detective Gardner informed petitioner that another tenant on the floor had witnessed petitioner in the open doorway of Starr's apartment on May 18 or May 19. Petitioner remained adamant that he had not seen Starr since May 9 or 10 and that he had nothing to do with Starr's death. His later accounts of the events preceding the discovery of Starr's body would remain consistent with these May 22 statements.
Petitioner was asked during this interview to provide ink samples of his feet for comparison to the footprints in Starr's apartment. Stating that he was eager to do whatever he could to clear his name, petitioner provided the police with prints of his feet on May 22. On August 29, 1996, the police again sought permission to take prints of petitioner's feet, and again petitioner granted permission, this time by signing a written consent form for the prints.
On November 12, 1996, after analysis of petitioner's August 29 ink prints found a match, a team of detectives arrested petitioner for the murder of Starr and brought him to the police station to await interview. At the police station, Detective Gardiner administered the Miranda warnings to petitioner from a form. Petitioner waived those rights, agreed to answer Gardiner's questions, and signed the form. During this post-arrest interview, petitioner proceeded to restate in essence the same account he had given on May 22: explicitly stating, among other things, that he had last seen Starr on May 9 or 10, that he never entered her apartment when she was not present, and that he did not have a key to her apartment. He provided this account in writing as well. This evidence was presented at trial along with testimony regarding petitioner's post-arrest and May 22 statements. Petitioner's Trial
The match found to a latent toe print left by petitioner in the apartment, not to one of the bloody footprints.
On November 25, 1996, petitioner was charged with the second-degree murder of Starr. Petitioner was represented at trial by Stephanie Kaplan of the Legal Aid Society ("trial counsel"). Petitioner's trial counsel moved to suppress the statements and physical evidence that petitioner had provided to investigators on May 22, August 29, and after his arrest, claiming these statements and evidence were coerced and the police lacked probable cause grounds for the arrest. The Supreme Court (Scherer, J.) held a suppression hearing on these issues on August 19, 1997, and reopened the hearing for additional testimony on December 11, 1997. On January 15, 1998, the court issued a twenty-five page written decision denying the motions in all respects.
Petitioner's jury trial (Daniels, J.) began on February 25, 1998. At trial, the state prosecutor relied on forensic and eyewitness evidence to establish the petitioner's presence in the victim's apartment, and petitioner's statements to establish motive and consciousness of guilt. Based on FBI analysis of the footprints left in the victim's apartment, it was established that a number of the footprints were petitioner's, and that these footprints were left at or after the time of Starr's murder. In addition, DNA analysis established that the blood found on the outside of petitioner's apartment door was consistent with Starr's DNA type.
The state introduced additional evidence to suggest that the actual killer was petitioner. First, the condition of the crime scene made it highly likely that the killer was an acquaintance of the victim. The victim was found wearing only a shirt, there was no sign of forced entry into the apartment, nor any sign of a struggle in the apartment. Second, the petitioner was spotted by a neighbor, Cassandra Smith, in the doorway of the victim's apartment on May 18 or 19, 1996. Based on the state of decay of the victim's body upon discovery, expert witnesses for the State established the likely time of death of the victim was around May 18 or 19. Finally, the prosecution used petitioner's earlier statements to the police that he had not seen the victim since May 9 or May 10 as evidence of his consciousness of guilt. In addition, the state used the statement by petitioner that he believed Starr was receiving a large check from the Social Security Administration soon as a possible motive for the killing.
Petitioner's trial counsel conceded that petitioner had been in Starr's apartment after she had been killed and stepped in her blood, and conceded that petitioner had lied to the police about his presence in her apartment. However, trial counsel argued that these footprints were left when petitioner discovered her already-murdered body, and that petitioner had lied to the police out of fear of being charged with a crime he had not committed. In addition, petitioner's counsel suggested that the victim's blood on the outside of petitioner's apartment door came from the killer accidentally brushing against petitioner's door in the hallway. In sum, trial counsel argued that petitioner's mere presence in the apartment after her murder, and his subsequent denial of that fact, was insufficient to prove beyond a reasonable doubt that petitioner in fact had murdered Starr.
On March 11, 1998, the jury found petitioner guilty of Second Degree Murder. Despite a request by petitioner's counsel, the court's jury instructions did not require the jury to assess the voluntariness of petitioner's statements to the police.
Subsequent Court Proceedings
Petitioner subsequently appealed his conviction to the Appellate Division of the New York Supreme Court. On appeal, petitioner was initially represented by Susan Kriete of Legal Aid. On May 23, 2000, Kriete filed a brief on petitioner's behalf, contending that the hearing court had erred in denying the motion to suppress and that the trial court had erred in refusing to instruct the jurors to assess the voluntariness of petitioner's statements.
On November 30, 2000, petitioner filed a pro se supplemental brief contesting the validity of the time of death evidence submitted by the prosecution at trial. Based on his own review of the autopsy report, petitioner argued that the victim had died about a week earlier than the date established at trial, May 18 or 19. In his brief to the appellate division, petitioner contended that (1) the prosecution committed misconduct when it put forward evidence suggesting that the victim had died May 18 or May 19, and (2) that his trial counsel had been incompetent for insufficiently challenging the time of death evidence.
Petitioner's challenge to the time of death evidence, first raised in his pro se brief, was based on his own review of Starr's autopsy report. According to petitioner, there is clear evidence in the autopsy report to establish that Starr died a week to ten days earlier than May 18 or 19, the estimate provided by the prosecution at trial. This alleged evidence supports petitioner's defense that Starr was dead when he entered her apartment. Petitioner's pro se brief argues that trial counsel's failure to challenge the time of death evidence deprived him of his right to effective assistance of counsel.
The autopsy of Starr's body, which was supervised by Dr. Jonathan Hayes and performed by his student Dr. Jordan Greenbaum, on May 22 provided the brunt of the trial evidence relating to Starr's time of death. It showed, among other things, that Starr's abdomen had turned green — an initial sign of putrefaction, that rigor mortis was absent, and that her body, and especially her hands and feet, had begun to dry out. Additionally, the autopsy report suggested that certain skin irregularities on the body could have been attributed to insect activity or post-mortem abrasion. Based on the autopsy findings, as well as evidence from the scene of the crime, Dr. Hayes testified at trial that he believed Starr had died on the 18th or 19th of May, or two or three days before the body's discovery. Medical-legal investigator Shyia Ribowsky testified at trial to the same time range, but believed that it was more likely that Starr had been dead three days as opposed to two. Both indicated that the 90 degree temperature in the room accelerated the decomposition of Starr's body and accounted for some of the early but still "mild to moderate decompositional change" noted in the autopsy report. Furthermore, Dr. Hayes acknowledged that, because determining the time of death was "an inexact science" requiring an assessment of a number of factors, his estimate had a margin of error of as much as 12 or 15 hours.
By the time petitioner filed his pro se brief, his original appellate counsel Kriete had left Legal Aid, and William Carney, also from Legal Aid, had replaced Kriete as appellate counsel. After having reviewed petitioner's pro se brief, Carney wrote a letter to the Appellate Division, dated January 2, 2001, regarding the possible conflict of interest raised by petitioner's ineffective assistance of counsel claim. Carney stated that he did not believe petitioner's brief presented a conflict of interest between petitioner and Legal Aid, but Carney invited the court to review that possibility. Carney also went on to note that prior to filing the brief, petitioner had never indicated a desire to raise an ineffective assistance claim against his Legal Aid trial counsel. The Appellate Division did not dismiss Carney as appellate counsel, and at no point did petitioner move to have the Legal Aid Society relieved as appellant counsel on account of Carney's letter.
On September 20, 2001, the Appellate Division unanimously affirmed petitioner's conviction. People v. Kollar, 286 A.D.2d 630, 730 N.Y.S.2d 320 (1st Dep't 2001). In its decision, the Appellate Division found that the hearing court had properly denied petitioner's suppression motion. The Appellate Division found that the petitioner was not in custody on May 22 because the "questioning was cordial and investigatory, rather than accusatory" and that petitioner "freely chose to stay and answer questions." Id. Similarly, on August 29, 1996, the Appellate Division found that petitioner "freely and voluntarily provided the foot impressions without any pressure from the police." Id. With respect to the trial court's refusal to give a voluntariness jury instruction, the Appellate Division found that it was proper "since [petitioner] failed to raise a sufficient factual issue at trial concerning the voluntariness of these statements." Id. at 631, 730 N.Y.S.2d at 731. The Appellate Division also considered and denied all of petitioner's claims contained in petitioner'spro se brief. Leave to appeal the decision before the New York Court of Appeals was denied February 2, 2002. People v. Kollar, 97 N.Y.2d 730, 740 N.Y.S.2d. 703 (2002).
By papers dated October 18, 2002, petitioner moved, without the aid of counsel, to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10(1)(c). Relying on many of the arguments made in his pro se brief, petitioner claimed that the prosecution had knowingly used false testimony regarding the victim's time of death in order to obtain his conviction. As part of that motion, petitioner insisted that Starr's autopsy report was newly discovered evidence supporting his theory. In a written decision dated April 14, 2003, petitioner's motion was denied without hearing. The court concluded the autopsy report was not newly discovered evidence because it had been turned over to defense prior to trial. In addition, the court ruled that petitioner's prosecutorial misconduct claim regarding Hayes's and Ribowsky's time-of-death testimony was utterly unfounded in light of the unusual heat in the apartment. Petitioner sought leave to appeal this decision to the Appellate Division on July 10, 2003, but his application was denied.
On August 1, 2003, petitioner applied for a writ of errorcoram nobis on the grounds that he was denied effective assistance of counsel on his earlier appeal. Petitioner's motion argued that appellate counsel should have presented the claims which petitioner had in fact set forth in his pro se brief: that trial counsel was ineffective both for failing to investigate the time of Starr's death and for failing to accuse the state of prosecutorial misconduct for putting forward allegedly false testimony regarding her time of death. In addition, petitioner also complained that appellate counsel, being from the same organization as trial counsel, labored under a conflict of interest. On February 26, 2004, petitioner's writ of error coram nobis to the Appellate Division was denied.People v. Kollar, 4 A.D.3d 898, 774 N.Y.S.2d 856 (1st Dep't 2004). Petitioner promptly applied for leave to appeal that decision with the New York Court of Appeals, and his application was denied for failure to state a question of law.
Thereafter, petitioner filed the instant application for a writ of habeas corpus with this Court, reasserting his voluntariness claim as well as his ineffective assistance of counsel claim.
DISCUSSION
I. Standard of ReviewThe Antiterrorism and Effective Death Penalty Act ("AEDPA"), P.L. No. 104032, 110 Stat. 1214 (1996), grants wide deference to state court determinations of both law and fact and restricts the ability of federal courts to grant writs of habeas corpus to state prisoners. Habeas review of a state court decision may only be granted for a claim adjudicated on the merits when the state court's decision (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or (2) involved "an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(1), (2).
The respondent concedes that petitioner has met the timeliness and exhaustion requirements.
"[A] state court decision is `contrary to . . . clearly established [federal] precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or `if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a different result from [that] precedent.'" Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002) (applyingWilliams). A state court decision involves an "unreasonable application" of federal law if the state court identified the correct federal rule but unreasonably applied it to the facts of the case. Bell, 535 U.S. at 694; see also Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003).
II. Petitioner's Involuntary Statement Claims
In his habeas petition, petitioner claims his due process rights were violated by the trial court's refusal to deliver a voluntariness charge to the jury, citing, among other things, New York Criminal Procedure Law § 710.70(3), which provides for the submission of the voluntariness issue to the jury. N.Y. Crim. Proc. Law § 710.10(3). The question of whether the trial court acted in accordance with New York state law when it refused to issue voluntariness instructions to the jury, however, is beyond the purview of this Court in deciding writs of habeas corpus.Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations of state-law questions."). Rather, the question before us is whether the failure to provide a voluntariness instruction to the jury amounts to a violation of petitioner's constitutional rights.
In Lego v. Twomey, 404 U.S. 477 (1972), the Supreme Court explicitly rejected a state petitioner's "contention that, even though the trial judge ruled on his coercion claim, he was entitled to have the jury decide the claim anew." Id. at 489. The Constitution does not require "submission of voluntariness claims to a jury as well as a judge." Id. Instead, the Constitution protects a defendant's right to have the voluntariness of statements determined by a judge, not a jury.Id. at 483. Issues regarding the "admissibility of evidence are questions for the court, and not the jury," and there is "nothing exceptional about a judge deciding a question such as corroboration or trustworthiness without the jury." United States v. Dickerson, 163 F.3d 639, 642 (D.C. Cir. 1999) (citing to Lego v. Twomey). Accordingly, neither the trial court's decision not to give a jury instruction regarding the voluntariness of the petitioner's statements, nor the Appellate Court's subsequent affirmation of that decision, are contrary to any clearly established federal law.
Petitioner does not directly challenge the underlying constitutionality of the hearing court's decision to allow the admission of his various statements to the police. However, because "the ultimate issue of `voluntariness' is a legal question requiring independent federal determination," Miller v. Fenton, 474 U.S. 104, 110 (1985), we briefly review the circumstances surrounding his statements for constitutional violations in the admission of the evidence. Nevertheless, the factual questions resolved by the state courts are entitled to the presumption of correctness dictated by 28 U.S.C. § 2254(d), Whitaker v. Meachum, 123 F.3d 714, 715 (2d Cir. 1997), and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
The underlying merits of petitioner's claims that his statements should be suppressed were adjudicated by the Appellate Division and by the hearing court. In the instant case, we find no cause to question the state court's factual conclusions regarding the voluntariness of petitioner's statements. From our review of the record, it is clear that petitioner's statements made on May 22, 1996, were voluntary and made in a non-custodial interview. As noted by the Appellate Division, petitioner voluntarily accompanied detectives to the police station on May 22. At the police station petitioner was not restrained in any way; he was informed that he was free to leave; and he left the police station once the questioning was completed. As the Appellate Division ruled, "[u]nder these circumstances, no reasonable person, innocent of any crime, would have believed that he was in custody." People v. Kollar, 286 A.D.2d at 630, 730 N.Y.S.2d at 320; see generally, United States v. Mendenhall, 446 U.S. 544, 554 (1980). Nothing in the record suggests that these factual determinations by the Appellate Division are incorrect or unreasonable in any way.
Similarly, this Court has no cause to question the Appellate Division's determination that petitioner freely and voluntarily provided foot impressions to the police on August 29, 1996. Petitioner signed a written consent form stating "I freely give consent without having been coerced in any manner." Resp. Ex. CC. As noted by the Appellate Division, "it is clear from all the circumstances that defendant freely and voluntarily provided the foot impressions." People v. Kollar, 286 A.D.2d at 630, 730 N.Y.S.2d at 320. Finally, petitioner simply fails to make an adequate showing that police coerced him into providing his post-arrest statements. Indeed, the record shows that petitioner was read his Miranda rights and signed a form waiving them. Accordingly, petitioner has not meet his burden of rebutting the presumption of correctness, and this Court declines to grant petitioner relief on his voluntariness claim.
III. Petitioner's Ineffective Assistance of Counsel Claim
Petitioner asserts that he was denied effective assistance of both trial and appellate counsel. Petitioner contends that trial counsel was ineffective when it did not challenge the time of death evidence submitted by the prosecution, and appellate counsel was ineffective in failing to brief the ineffectiveness of trial counsel claim before the Appellate Division.
An ineffective assistance of counsel claim is analyzed under the two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must demonstrate (1) that counsel's performance was deficient, and (2) that the deficient performance resulted in prejudice to the defendant such that he was denied a fair trial. Lockhart v. Fretwell, 506 U.S. 364 (1993).
Counsel's performance is ineffective only if his "identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. In evaluating a claim of ineffectiveness, "[j]udicial scrutiny of counsel's performance must be highly deferential," and the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."Id. at 689. The "[f]ailure to make a meritless argument does not amount to ineffective assistance of counsel." United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999).
If a deficiency is established, petitioner must also demonstrate that he suffered prejudice from that deficiency. In other words, petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 446 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id.
Applying the standard above, it is clear that petitioner received effective assistance of counsel at the trial court level. First, petitioner has failed to demonstrate that counsel's performance was deficient. A review of the record shows that trial counsel was a zealous advocate for petitioner. Trial counsel attempted to suppress petitioner's statements to the police, including his voluntary submission of footprint evidence, the most-incriminating evidence against him. By attacking the voluntariness of the petitioner's statements and actions, trial counsel hoped to preclude the evidence establishing that petitioner had been in the victim's apartment after the murder, and that petitioner had lied to the police about his actions. In addition, trial counsel attempted to convince the trial judge to submit the voluntariness of the petitioner's statements to the jury for consideration. That petitioner's trial counsel was ultimately unsuccessful in these efforts does not diminish the fact that petitioner's counsel endeavored to preclude the strongest evidence.
Moreover, it is doubtful that a strenuous attack on the time of death evidence would have benefitted petitioner's case in any measurable manner. First, trial counsel successfully established at trial that the time of death provided by the prosecution was an estimate at best, and could not be established for certain. The trial record demonstrates that Dr. Hayes explicitly acknowledged the tentative conclusions in the autopsy report before resolving them. Moreover, both he and Ribowsky reiterated, upon cross-examination, that time-of-death estimates were unavoidably inexact.
Second, the new evidence supporting petitioner's version that trial counsel allegedly neglected is insubstantial and subject to attack. Petitioner bases his ineffectiveness claims on one forensic textbook, which he reads to incontrovertibly refute the time of death autopsy testimony presented at trial. Petitioner offers no bona fide expert testimony in support of his position, but rather advances a single volume, written by two law professors rather than medical experts, to challenge the State's autopsy analysis. Yet even this meager evidence fails to directly dispute the State's representations. In fact, the very `chronology of decomposition' which petitioner cites to establish an earlier time of death is prefaced with the qualification that "[h]igh temperatures accelerate the putrefaction process while low temperatures slow the process." 1 Paul C. Giannelli Edward J. Imwinkelried, Scientific Evidence 136 (3d ed. 1993). As the unusual heat in Starr's room was a pivotal determinant in the assessment of her time of death, it is unclear how the cited timetable undermines the conclusions offered by the state's witnesses.
In addition, petitioner significantly understates other evidence that could have independently established petitioner's guilt at trial: petitioner was seen entering the scene of the crime on May 18, 1996; petitioner was not shown to possess a key to Starr's apartment, so it could be inferred that Starr was alive on that date to let him in; print analyses placed petitioner at the crime scene after Starr's death, and Starr was seen alive on or about May 15. As noted by Judge Carruthers in the decision denying petitioner's 440.10 motion, trial counsel's decision not to challenge the time of victim's death estimate was "understandable, because such evidence would not have aided [petitioner] in any way." Resp.'s Ex. M. at 15. Accordingly, petitioner has not shown a reasonable probability that, but for the alleged deficiency, the outcome of the trial would have been different.
The Appellate Division's denial on the merits of petitioner's ineffective assistance of trial counsel argument, raised in hispro se memorandum, is entitled to deference under the AEDPA. 28 U.S.C. § 2254(d). Petitioner has cited nothing to establish that the Appellate Division's application of federal law was unreasonable. Accordingly, petitioner's claim of ineffective assistance of trial counsel is denied.
Petitioner also claims, in passing and for the first time in his case's long procedural history, that trial counsel was ineffective because petitioner "was not allowed to testify on his own behalf." Brief for Petitioner at 33 (emphasis added). Petitioner has failed to present this claim for state review, and therefore this claim has not met the exhaustion requirements of AEDPA. However, while a district court cannot grant relief for an unexhausted claim on its merits, AEDPA does permit dismissal of such a claim on its merits. 28 U.S.C. § 2254(b)(2); Rhines v. Weber, 125 S. Ct. 1528, 1535 (2005); Aparicio v. Artuz, 269 F.3d 78, 91 n. 5 (2d Cir. 2001). Any claim that counsel denied petitioner the right to testify "must satisfy the two-prong test established in Strickland." Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997). In the instant case, petitioner's proposed trial testimony would have merely reiterated the theory that his counsel presented at trial, and which the jury had ultimately rejected. Even assuming that counsel denied petitioner his Sixth Amendment right to testify, petitioner's testimony simply cannot be said to create a reasonable probability that an alternate outcome would have resulted. See Rega v. United States, 263 F.3d 18, 25-26 (2d Cir. 2001) (rejecting ineffective assistance of counsel claim when there was little chance that the petitioner's proposed testimony would have altered the outcome of the trial). Accordingly, we dismiss petitioner's claim.
With respect to petitioner's claim of ineffective assistance of appellant counsel, the Supreme Court has held that counsel "need not advance every argument, regardless of merit, urged by the appellant." Evitts v. Lucey, 469 U.S. 387, 394 (1985) (citingJones v. Barnes, 463 U.S. 745 (1983)). The process of winnowing out weaker arguments and focusing on those that appear more likely to prevail is the hallmark of effective appellate advocacy. Jones 463 U.S. at 751-52. Therefore, generally, only when a petitioner can show that counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), will the presumption of effective counsel be overcome.
Appellate counsel pursued the strongest arguments available to petitioner on appeal — the voluntariness of petitioner's statements to the police and the trial judge's refusal to give a voluntariness jury instruction. Nothing in the records suggests that these efforts were outside the range of professionally competent appellate assistance of counsel. In his current habeas petition, petitioner reiterates many of the same arguments made by appellate counsel on appeal. Furthermore as discussed below, there is little merit to petitioner's claim of ineffective assistance of trial counsel. Therefore, appellate counsel's failure to raise this issue on appeal is justifiable and does not rise to the level of ineffectiveness.
Petitioner supplements his ineffective assistance claim with a conflict of interest claim, arguing that his appellate counsels' refusal to pursue the ineffectiveness of trial counsel claim was due to the fact that they were all commonly employed by Legal Aid. To prevail on a conflict of interest claim, petitioner must demonstrate that an "actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980). Petitioner, however, fails to demonstrate that the conflict adversely affected performance. This is because, as noted above, there is no showing that trial counsel rendered deficient representation to petitioner at his trial, and therefore appellate counsel's decision to forego pursuing this claim cannot properly be viewed as an adverse affect. Moreover, we note that Legal Aid counsel Carney brought the potential conflict issue to the Appellate Division's attention, and that the Appellate Division declined to appoint petitioner new counsel, presumably after evaluating the argument. Accordingly, we decline petitioner's application to overturn the Appellate Division's judgment on his conflict claim as well.
The Appellate Division's denial on the merits of petitioner's claim for ineffective assistance of appellate counsel is entitled to due deference under the AEDPA. See 28 U.S.C. § 2254(d). Petitioner has given this Court no reason to believe that the Appellate Division's application of federal law was unreasonable. Thus, petitioner's claim of ineffective assistance of appellate counsel is denied.
AEDPA deference applies to state court decisions on the merits of a claim. Because petitioner's coram nobis motion was rejected on substantive grounds, not procedural grounds, it is subject to review under the deferential standard of the AEDPA.See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001).
CONCLUSION
For the foregoing reasons, Mark Kollar's petition for a writ of habeas corpus is denied. As petitioner has failed to make a substantial showing of the denial of a Constitutional right, we decline to issue a certificate of appealability. See 28 U.S.C. § 2253(c). In addition, we certify that any appeal from this decision would not be taken in good faith. 28 U.S.C. § 1915(a) (3). The Clerk of the Court is respectfully requested to close this case on the Court's docket.IT IS SO ORDERED.